Abstract
The objective of this article is to explain the existing demands and contestations on the amendment of the current constitution of Ethiopia. It also aims at analysing the effects of the un-amendable constitution on the political system of the state. A qualitative study was employed to collect and analyse the required data. Both primary and secondary sources of data was collected through interview and the analysis of documents. Accordingly, the study indicated that the demands of constitutional amendment on the part of FDRE constitution is related to the illegitimate constitutional-making process, inadequate constitutional provisions and the presence of new emerging political dynamics. The rigid amendment rules, undemocratic nature of the regime and the deviation among political actors on the issue of amendment are the main contestations against the stated demands. At the end, the investigation showed that the political insecurity and declining of constitutional legitimacy are major effects of the un-amendable aspects of the FDRE constitution, which in turn undermine the required political reforms in the country.
Introduction
Constitutional amendment is a modification on the existing constitution to ensure its sustainability by fitting it with the changing socio-economic and political dynamics. It is a constitutional alteration that continues to develop the constitution in the constitution-making path that began at its founding moments (Albert 2018). Constitutional amendment is the idea of making correction or improvement upon prior constitutional design in light of new information, evolving experiences or political understandings. The concept of constitutional amendment drives from the idea that no generation has a monopoly of knowledge to bind future generations everlastingly and a constitution that will not bend will break (Dixon 2011). This is because the indispensable role of constitutional amendment is for the relative permanency or sustainability of the constitution. Amending a constitution is an inherent nature in the process of making a constitution in order to strengthen its provisions where necessary (Shaw 2005).
Constitutional amendment is a means for perfecting the inadequacies of a constitution experienced through time and is a healing principle that would allow constitutional texts to stand the test of time (Preuss 2011). The ideologies, interests and ambitions of constitutional provisions can be outdated and changed through time and hence necessitate revising the constitution to make it compatible with changing realities and needs (Zelalem 2019). Moreover, constitutions need to develop over time not only to correct provisions that have proven to be inadequate or impracticable, but also to respond to new demands, changing public needs and evolving concepts of rights. The content of constitutional provisions cannot reflect social realities and political needs over time unless timely amended (Bockenforde 2014).
Constitutional amendment is important to avoid the danger of anti-constitutional or revolutionary methods of constitutional change (Zelalem 2019). Since constitutional amendment is a key Lego-political process to maintain the relative permanency of the constitution, many constitutions are revised several times to make them suited with the mutable socio-economic and political settings. For instance, in its two centuries and three decades functions, around thirty-three amendments were proposed in the US constitution since 25 September 1789. From these 33 proposed amendments, the concerned organs approved 27 by until 5 May 1992 (Anastaplo 1992).
The principle of constitutional amendment is an integral part of every constitutional democracy (Aberra 2017). Considering constitutional amendment as essential aspect of political system, almost all national constitutions, with exceptions of countries having unwritten constitution, have constitutional provisions that deal with the power of constitutional amendment. Accordingly, a constitution that does not have amending clauses, which dictate the process of constitutional change, is seen as incomplete (Zelalem 2019). Although some scholars argue that not all forms of constitutional changes involve formal amendment processes (Getachew 2012), formal constitutional amendment is more of a norm and considered as a commonly shared and basic feature of national constitutions (Dixon 2011). Since some form of formal amendment procedures are a near-universal feature of contemporary constitutions, the relevant question for constitution makers is not whether there should be a provision addressing formal amendments, but what needs to be considered while drafting it (Bockenforde 2014).
Overview of Ethiopian Constitution and Amendments
Ethiopia has a very pint-sized practice with a written constitution despite its protracted history of state formation. That is why the first written usage of the constitution was publicised in Ethiopia in 1931 (Bayeh 2015) Nonetheless, before that, the state has a far hindmost constitutional antiquity of unwritten form. This absence of a written constitution does not ineludibly associate the entire non-appearance of constitutional rules and values in the lawful history of Ethiopia. From the beginning of the thirteenth century to the early twentieth century, the Ethiopian Orthodox Church was the principal legitimate provider of monarchical rule. Nevertheless, the rights and obligations of the king and its people were not signified out in a written secular constitution. As an alternative, the monks of the church established an intricate set of codes embedded in an Ethiopian national grand. Despite the fact of the actuality of constitutionally noteworthy documents in traditional Ethiopia, no written constitution in modern logic formed the basis for the constitutional process. Hence, traditional constitutional documents like the Glory of the King (Kebra Nagast) has constitutional relevance. Kebra Nagast means the glory of the king. The Kebra Nagast (The Glory of Kings) was written to document for the first time the mythical origins of the royal house (Ayferam 2015). This document was written by six Tigrean clerics and completed in the early fourteenth century. It was the most important traditional document that even defined who should become king in Ethiopia, that is, it determined the succession of the throne in Ethiopia. It was the principal source of legitimacy for the kings. This document takes Ethiopian history back to the Solomonic dynasty, where the queen of Sheba made a romantic trip to King Solomon of Israel and gave birth to the first Ethiopian king Menelik I (ibid). Based on this, the document determined that any king in Ethiopia must descend from the Solomonic dynasty or must have such a blood relationship with the dynasty.
Law of the King (the Fatha Nagast) was a religious and secular legal provision than being a definite constitution. Law of the Kings is a collection of laws that is used in Christian Ethiopia for many centuries. It set out the laws and regulations that were used to govern all activities of the Ethiopian society in the late middle age. It was used as the source of constitutional, civil and criminal laws. It was compiled from the Old Testament, the New Testament, and Roman law (Tafla and Scholler 1976). It serves as both religious laws and legal provisions of the state. It was the fundamental laws upon which the government and the administration were based and the king vested with absolute power. The throne was hereditary, the king was thought to be appointed divinely, that is, derives his power directly from God. It contains the idea of divine rights of kings with the assumption that rules have a God-given power.
Administrative laws (serate mengest) was another traditional document that had been used as a constitution by the traditional rulers before 1931. The serate mengest was one of the traditional documents of the nineteenth century that provided certain administrative protocols and directives in the nineteenth century (ibid). The serate mengest can hardly be considered to be a document of Constitutional Law in its widest sense. Nonetheless, as it was the first document known to have been used for allocating power among the Crown, its dignitaries and the church, employed a protocol of ceremonies, which had to be consulted whenever occasions required it. It tried to lay out a pattern of succession to power, though the problem of primogeniture was more theoretical than practical as incessant rivalries among members of the royal house intermittently switched lines (Ayferam 2015). From the thirteenth century until the early twentieth century, these three documents were the precursors to the formal written Ethiopian national constitutions of the modern era.
With the promulgation of the first written form of the constitution on 16 July 1931, by Emperor Haile Selassie, the era of an unwritten form of the constitution came to an end. The constitution reinforced the traditional position of the emperor as Siyume Egziabiher, Niguse Negast Za Ethiopia which means: Elect of God, King of Kings of Ethiopia. On the other marked the end of the role of the nobility or at least the gradual reduction of their role in local leadership, the traditional check against the power of the king of kings, to insignificance.
It is believed that both internal and external factors forced the development of the 1931 constitution. Externally, the introduction of the 1931 constitution was the result of the growing interaction between Ethiopia and the external world, particularly the Western European countries. Emperor Haile Silassie developed a strong aspiration to view Ethiopia as a modern state to the rest of the world (constitution of 1931).Yet, it is important to note that Haile Selassie was crowned with the full support of the pre-war modern elite with a mission of Japanising Ethiopia (Nahum 1997). The Meiji constitution of Japan was conceived as a benevolent gift of the Emperor of Japan to his people. The emperor embodied the state itself and was the source and repository of all state power. The emperor had to convince the world that his country was modernising and taking its place among the civilised states. A few years before that it became a member of the League of Nations, over some nations’ objection that it was not civilised enough to join the club of civilised nations. The constitution unequivocally declared that the sole basis of legitimate authority was the emperor and that all titles and appointments descended from him. For instance, Article 6 of the constitution declares that, in the Ethiopian empire, supreme power rests in the hands of the emperor. He ensures the exercise thereof in conformity with the established law. Ethiopia required reflecting a different picture of its own to the rest of the world, that it is no more a backward state. However, the 1931 constitution failed to achieve external goals as intended by the emperor.
Internally, the 1931 constitution was intended to provide a legal framework for the suppression of the powerful traditional nobilities to the emperor. The emperor had a deep interest in centralising the state power in the internal politics of the country. This was effectively done by the absolutist nature of the constitution. It was designed to unify and centralise all state power in the hands of the monarch (Bayeh 2015). This also marked the beginning of the culmination of the struggle for centralisation, which began with the attempt at unification by emperors during the nineteenth century and reached its consolidation under the absolutist rule of Emperor Haile Selassie to be further reinforced by the military. The consequence was the alienation of the bulk of the regional actors leading to the centre-periphery polemics. Ethiopian politics was profoundly affected by World War II and its aftermath. The emperor had been driven into exile, when in early 1935 the Italian Fascists occupied the country for just over 5 years. During this period, both the Ethiopian orthodox church and the traditional aristocracy were severely weakened (Nahum 1997). In fact, in the process of resisting the Italian occupation, virtually a whole generation of young Ethiopian intellectuals was wiped out. When the British restored the emperor to the throne in 1941, he used their military and administrative assistance to bolster his authority against what was left of the church leadership and the traditional aristocracy. At the same time, the world had also been profoundly changed by the war (ibid). Ethiopia found itself needing to establish itself as a legitimate player in the world community of states. Moreover, it was surrounded by African colonies, which were rapidly gaining their independence and left by the departing colonialists with varying forms of democratic institutions. This trend led to pressures for reform on the imperial crown from younger Ethiopians.
In this situation, after a quarter of a century, the 1931 constitution was revised and replaced by the constitution of 1955. There were constellations of social and political events that urged the revision of the 1931 constitution. The revision of the 1931 constitution was urged both by internal and external factors. The revised constitution continued to reinforce the process of centralisation. The sketchy provisions regarding the powers and prerogatives of the Emperor were elaborated extensively in the new constitution. The constitution spent one chapter settling the issue of succession on the rule of male primogeniture. Detailed provisions were vested in the Emperor’s wide powers over the military, foreign affairs, local administration and so forth. Interestingly enough it also contained an elaborate regime of civil and political rights for the subjects. In theory, the constitution was the supreme law of the land governing even the Emperor. It contemplated even an independent ministerial government responsible to the monarch and parliament, an elected chamber and an independent judiciary but these liberal provisions were overshadowed by executive prerogatives reserved to the Emperor who exercised them expansively. Despite the apparent inclusion of the notion of separation of powers, little change regarding the position of the Emperor was introduced. He was both the head of state and the government and he continued to oversee the judiciary through his Chilot (Crown Court).
Fourteen years after the end of a five-year colonial suppression by the Italians in 1941, a revised constitution was embraced in the Ethiopian legal system in 1955. It was revised because of internal and external factors mainly to cope with the social and political dynamics of the then period, global politics and the Ethio-Eritrean federation (Nahum 1997). As stated from 1955 constitution, the version of the 1931 constitution comes with a slight modification in the structure of the system of governance, limiting the power of the emperor to a certain extent and a relatively better recognition of rights and freedom. However, like its predecessor, the constitution declares the inviolability of the Emperor’s dignity, and the power of appointing and dismissing members of the parliament and other offices were in the hands of the Emperor.
The federation of Eritrea with Ethiopia led to the addition of two new documents into the Ethiopian legal system. These were the federal act and the Eritrean constitution. The federal act was a document that specified the terms of agreements for the federation between Eritrea and Ethiopia (Ayferam 2015). The Eritreans have established their constitution with the support of the United Nations. This constitution incorporated the human rights provisions of the universal declaration of human rights and other progressive concepts. It also implied a more liberal government that incorporated the values and ideas of a democratic society as a result of colonial heritage and the influences of the United Nations (ibid). Both documents were far more modern and better than the existing traditional 1931 constitution of the imperial government. Thus, the emperor was forced to revise the 1931 constitution.
Immediately after coming to power, the Dergue set up the provisional military administrative council (PMAC) type of temporary government. The Provisional Military Administration was also in the process of reconstituting itself. To legitimise itself within and abroad it had, at least, to take off the uniform and appear in a civil dress. The PMAC presented itself for elections through a new party the Workers’ Party of Ethiopia. As it is clearly shown from the 1987 constitution of Ethiopia, the party became the vanguard communist party. The establishment of the Dergue inevitably brought profound changes in the country. After coming to power, the Dergue issued a series of decrees and proclamations that was used as legal rules until the adoption of the 1987 constitution. It took sweeping measures through a series of decrees and proclamations that includes the nationalisation of rural and urban land, extra-urban houses, private schools and factories by passing series. In Article 3, the state would control key production, distribution and service enterprises, which legalised the massive nationalisation of private businesses after the government came to power in 1974. However, these decrees and proclamations cannot be given a constitutional status because it does not touch basic constitutional issues. This may lead us to the conclusion that the time from 1974 to 1987 was a period of constitutional vacuum in Ethiopia.
Though it was late, during the Dergue regime a new constitution was adopted in 1987. The regime facilitated the adoption of a new constitution, through a constitutional commission, which was different in its natural form from the constitutions of its predecessors. The People’s Democratic Republic Ethiopia Constitution (1987) was different from the 1931 and the 1955 imperial constitutions in that:
State and religion were separated (issue of secularism was included in the constitution) for the first time. State, the political power and sovereignty were declared to be the preserve of the working people of Ethiopia. It contained provisions on democratic and human rights. Recognised the different cultural identities and the equality of nation and nationalities. Introduced a party system by giving recognition to the workers’ party of Ethiopia. Thus, leading to a transition from a none party system to a single party system; aimed at the principles of Marxist and Leninist ideology; aimed at giving power to the people so that they exercise through the referendum, local and national assembly. Practically, the 1987 constitution was not different from the 1931 and 1955 constitutions.
After the withdrawal of the Dergue regime, Ethiopia was ruled by a transitional charter from 1991 to 1995. During the transitional periods, the 1995 FDRE constitution was drafted, discussed and ratified with the constitutional assembly of the then time who were affiliated with the party politics of EPRDF (TPLF). The Federal Democratic Republic of Ethiopia (FDRE 1995) constitution has a wider coverage of both human and democratic rights. Of the total 106 articles of the constitution, just about one-third (approximately 33 articles) is devoted to the discussion of rights. While the democratic rights enshrined in the constitution tend to be essentially group-oriented and political human rights on the other hand are individualistic and natural. The 1995 constitution has some salient features. Getahun (2007) mentioned the introduction of a federal form of governance and the assignment of the competence of determining constitutionality to the second chamber of the parliament among other things. Besides, the FDRE (1995) constitution takes a breakthrough departure in the constitutional history of the country by embodying many of the core egalitarian principles including the principle of self-determination of collectivities, rule of law, democracy, development, fundamental rights and freedom, equality and non-discrimination, sustainable peace and affirmative action in its preamble part. In the second chapter, the constitution gives recognition to five fundamental principles to be precise the principles of popular sovereignty (art. 8), constitutionalism and constitutional supremacy (art. 9), the sanctity of human rights (art. 10), secularism (art. 11) and accountability and transparency of government (art. 12). The constitution embodied fundamental principles, which give a background to many of the rules that emerge in subsequent chapters thereby setting the framework for a better understanding and interpretation of the rules.
Federal Democratic Republic of Ethiopia (FDRE) constitution contains provision that deal with amendment procedures. Regarding the initiation of amendments, article 104 illustrates:
Any proposal for constitutional amendment, if supported by two-thirds majority vote in the House of Peoples’ Representatives, or by a two-thirds majority vote in the House of the Federation or when one-third of the State Councils of the member States of the Federation, by a majority vote in each Council have supported it, shall be submitted for discussion and decision to the general public and to those whom the amendment of the constitution concerns (FDRE Constitution 1995).
Furthermore, in relation to amendment of the constitution, article 105 of the constitution states:
All rights and freedoms specified in chapter three of the constitution, this very Article, and Article 104 can be amended only in the manner: a. when all State Councils, by a majority vote, approve the proposed amendment; b. when the House of Peoples’ Representatives, by a two-thirds majority vote, approves the proposed amendment; and c. when the House of the Federation, by a two-thirds majority vote, approves the proposed amendment. All provisions of the constitution other than those specified in sub Article 1 of this Article can be amended only in the manner: a. when the House of Peoples’ Representatives and the House of the Federation, in a joint session, approve a proposed amendment by a two-thirds majority vote; and, b. when two-thirds of the Councils of the member States of the Federation approve the proposed amendment by majority votes.
However, these procedures had essentially been invoked while the FDRE constitution was amended twice in the past 20 years. Even a large section of the people were not aware of the fact that such illegal constitutional amendments were made. Due of the undemocratic nature of the regime, the contents of article 98 and article 103 (5) of the constitution were changed in 1997 and 2005 respectively, without a due observance to the aforementioned constitutional provisions (Zelalem 2015). Hence, the quest for formal and all-inclusive dialogue for constitutional amendment is now becoming one of the main political claims of political actors. Accordingly, some of the political parties and elites have given priority to the issue of constitutional change as a result of the ‘political transition’ that promises a comprehensive ‘political reform’ in the post 2018 Ethiopia (Zelalem 2016). Due to such persistent claims, constitutional amendment is identified as one area of discussion among the political players. Constitution is tabled as an issue in the current political reform and listed in the first place of the concerns for dialogue among political parties (Alemayehu 2019).
Although constitutional amendment is the primary agenda for political players, the 1995 FDRE constitution has not been ‘legally’ amended yet. The former ruling party Ethiopian People’s Revolutionary Democratic Front (EPRDF) rarely deal with ideas to amend, replace or remaking the existing constitution. ‘The idea of constitutional amendment has been a sort of “political taboo” during the pre-Abiy Ahmed period’ (Zelalem 2016, 16). Instead, the EPRDF regime was labelling such movements as anti-democratic forces with intent to obliterate the constitutional government and the constitution itself.
However, relative improvements have been observed after the coming of Abiy Ahmed as a Prime Minister on 2 April 2018. Since then, the issue is brought to the table of dialogue and political parties including the incumbent are discussing on the amendment of the constitution. Abiy promised to carry out political reforms on a wide range of political issues including the constitution. He also vowed to broaden democratic space in the country by reforming institutions and legal frameworks of the state, which is in fact an attempt that brings changes on the discourses of EPRDF vis-à-vis constitutional amendment. Due to the political transition that promises a comprehensive reform in the country, various political elites have given priority to the issue of constitutional change (Zelalem 2016). Therefore, the aim of this article is to assess the essentials and challenges for the amendment of the FDRE constitution. Specifically, the article aims to (a) inspect the demands being proposed to justify the claims for the amendment of the FDRE constitution; (b) identify the main contestations in the amendment of the FDRE constitution and (c) analyse the implications of un-amendable FDRE constitution on the stability and political development of the state.
In the written constitution history of Ethiopia, the 1995 FDRE constitution is working without amending itself, however, numerous political, social and economic demands and contests are prevailing with the real situation of Ethiopia. Although constitutional amendment is continued as the primary agenda for political players, the 1995 FDRE constitution has not been legally amended yet. The former ruling party Ethiopian People’s Revolutionary Democratic Front (EPRDF) rarely deal with ideas to amend, replace or remake the existing constitution. ‘The idea of constitutional amendment has been a sort of “political taboo” during the pre-Abiy Ahmed period’ (ibid, 16). The EPRDF government was labelling such movements as anti-democratic forces to obliterate the constitutional government. However, there is a relative improvement after the coming of Abiy to power. At least, constitutional amendment is now brought to the table of discussion for political parties including the incumbent. Given such growing demands, the aim of this article is to assess the demands, essentials and contestations on the amendment of the FDRE constitutional. Particularly, the study aims to:
Examine the demands for the amendment of the FDRE constitution; Identify the prevailing contests on the amendment of FDRE constitution and Analyse the effects of the un-amendable aspects the FDRE constitution on the political system of the country.
Methods and Materials
This article was done based on qualitative approach where both primary and secondary sources of data is used. Semi-structured interview was employed to collect primary data. Interviews were conducted with participants from five categories: the ruling party, opposition political parties, destiny Ethiopia facilitators (individuals who organise discussion forums on existing political agendas), human right activists, legal experts and researchers of constitution and human right. Participants of opposition political parties were selected from both pan-nationalists or multinational forces and ethno-national forces. While pan-nationalists claimed to struggle for all Ethiopian citizens without any attachment to a particular ethno-linguistic group, the ethno-nationalist forces were struggling for a particular ethnic group in the state.
From multinational political parties, All Ethiopian Unity Party (AEUP), Ethiopian Democratic Party (EDP), Balderas for Justice and Democracy (Balderas) and Ethiopian Citizens for Social Justice (EZEMA) were part of the study. On the other hand, National Movement of Amhara (NaMA), Oromo Liberation Front (OLF), OFC and Union of Tigrayans for Democracy and Sovereignty (UTDS) commonly known as Arena were part of the study to incorporate the views of ethno-national parties. Political parties were selected based on their active participation in the current political system of the state and assumed public support. Each participant from the selected parties was chosen through familiarity of the person to the problem under study. Participants were selected based on non-probability purposive sampling technique, which enabled to identify and select participants having rich information and better experience. Accordingly, primary data was collected through face-to-face personal interviews, phone interviews and email conversations. On the other hand, secondary sources of data was obtained through the analysis of literature, the contents of FDRE constitution, the minute of constitutional making of the FDRE constitution, programs of political parties and online media sources.
Discussion
The Demands for the Amendment of the FDRE Constitution
Considering the data acquired from participants of the study and document analysis, the study revealed that the demands for the constitutional amendment in Ethiopia is related with unjust constitutional-making process and inappropriate contents of the 1995 FDRE constitution as discussed below.
Claims Related to Constitutional-making Process
The study indicated that one of the demands for the constitutional amendment of the FDRE constitution was being justified in relation to its initial constitutional-making process, which was criticised, for it was exclusionary against the ‘main’ stakeholders. Since the constitution is a contract among the people on how they would like to be governed, its owners (the people), need to be fairly represented in its making process. At this juncture, Skjelton (2006) stated that for a constitution to be credible and durable, the voices of people from across society must be heard and incorporated in its creation. Likewise, Elazar (1985) maintained that as the constitution making is an ‘eminently political act’ whereby real people with real political interests and motivations play, it requires genuine deliberation and compromises through an inclusive and participatory approach at each stage of the process namely initiation, drafting, deliberation, adoption and ratification. In contrast to this view, the Constitutional Commission, which was organised to prepare the draft constitution and the Constitutional Assembly, which was structured to ratify the constitution were exclusively controlled by individuals that reflect the interests of TPLF and its affiliated parties. Participants argue that since the making process of the FDRE constitution was very exclusive, this affects its legitimacy negatively. Concerning this, an interviewee from the AEUP said that:
The current constitution was prepared with the will of TPLF without an inclusive democratic bargaining among the concerned stakeholders at that time. Primarily, the process was exclusionary against the Ethiopian nationalist groups like Ethiopian People Revolutionary Party (EPRP) and All Ethiopian Socialist Movement (AESM). Moreover, ethno-nationalist forces such as OLF and All Amhara People Organisation (AAPO) which are feared to have public support against the TPLF were systematically excluded from the election to the General Assembly (Interviewee 08, 20 September 2020).
From the above explanation, it is clear that the demand for amendment for the FDRE Constitution is resulted from its limitation during the making process. Concerning this, Ketemaw (2020) stated that multinational parties or Ethiopian nationalists were excluded from the restructuring process for the reason that they were not complying with TPLF’s political programmes and ideologies.
In addition to the exclusion of competing political forces, it is also argued that the people of Amhara were not part of the constitutional-making process. This claim is significant particularly for Amhara-based ethnic political parties. Political parties that claim to represent the Amhara people like Amharan Democratic Forces Movement (ADFM), NaMA, Amhara Prosperity Party (the part of incumbent party PP) argue that Amhara was not dully represented during the drafting and ratification process of the FDRE constitution and hence this constitution not legitimacy for the people of Amhara. Interviewee 12 (15 September 2020) from NaMA asserts:
At the expense of its pivotal role in the struggle against the Dergue government, the Amhara people are systematically excluded during the restructure of the state. For instance, the representation and participation of the Amharan based forces were negligible if you consider the then Constitutional Commission and the Constitutional Assembly, the July 1991 conference and the composition of the internal Boundary Demarcation Committee. In this regarded, the only political force that was supposed to represent Amhara was the Ethiopian People Democratic Movement (EPDM). Nevertheless, as one can easily understand from its name, this party claimed to represent the whole Ethiopia and cannot be taken as a guardian of Amharas’ right as it is compared to other ethnic based parties. In addition to its multinational agenda, EPDM was also established by TPLF for the sake of its political motive.
As a result, the demand for amendment of this constitution just as its making process was exclusionary where the aspirations and interests of the Amhara people were not truly represented. In relation to the limitation of the making of the 1995 FDRE constitution, Aalen (2002, 42) confirmed as:
It is apparent that the process behind the new constitution was even less inclusive and participatory than the process behind the transitional charter. In the constitutional making process, the EPRDF totally dominated the scene. It is therefore impossible to conclude that the final confirmation of the federal solution through the constitution was based on a pact or covenant between contending political forces…. The new constitution, the main document for legalizing and formalizing the federal system, was ratified by a Constitutional Assembly controlled by the ruling party.
All the above stated discussions demonstrate the fact that the constitutional making of the FDRE constitution was dominated by TPLF and its allies, whereas pan-nationalist forces and other ethno-national parties such as AAPO and OLF were systematically excluded. This in turn severely limits the legitimacy of the constitution, which justifies the claim to a participatory and consented constitutional amendment. Regarding the need for inclusive constitutional making, Skjelton (2006) inclusiveness, representation, transparency and national ownership together with public participation are important principles of constitution making and are part of a new constitutionalism. Similarly, Selassie (2003) explained that constitution making should be viewed in terms of the process rather than simply the result. Individuals who are involved in designing, implementing and supporting a process of constitution making should not be so focused on arriving quickly at the destination that they overlook the importance of the journey. Instead, they have to work to bring people together, build trust and develop shared ownership with considerable time. Consequently, considerable attention must be given to the design of the constitution-making process and the fundamental principles that determine the substance of a constitution (Brandt et al. 2011).
Claims Related to the Content of the Constitution
According to International Institute for Democracy and Electoral Assistance/International IDEA (Bockenforde 2014), constitutional amendment can be made for public interests such as to adjust the constitution to the environment within which the political system operates (including economics, technology, international relations, demographics, changes in the values of the population etc.). This is done to correct provisions that have proved inadequate over time and to further improve constitutional rights or to strengthen democratic institutions. Accordingly, the study revealed that the other demand for the amendment of the 1995 FDRE constitution is emanated from its substance as the provisions of the constitution are found to be inadequate to deal with the newly emerging socio-economic and political dynamics of the state. Participants explained that there is a wide range of changes that have taken place in the political orientations, structure and administration of the state which demand for amendment on the contents of the constitution. In relation to this, Aberra (2017) argued that in Ethiopia, several political, social, environmental, cultural and economic changes have taken place in the last quarter of a century. This entails that the current constitution must incorporate such emerging issues through amendment. One of the participants argued that:
Nowadays, there are ranges of new political progress in contrast to the static constitution. The creation of the Sidama National Regional State is exemplary for this case. This region is structured as one independent units of the federation on November 2019. However, this newly established regional state is not mentioned under Article 47 of the FDRE constitution. Hence, to incorporate this regional state in the lists of the federating units of the state mentioned under Article 47, amendment of the content of the constitution is necessary (Interviewee 03, 15 September 2020).
Furthermore, there are also emerging issues with respect to the language. As clearly stated under Article 5(2) of the FDRE constitution, Amharic shall be the working language of the federal government. Nonetheless, in recent times, the council of ministers adds four languages to be the working language of the federal government. In its regular meeting held on 29 February 2020, the council decided that Oromifa, Tigregna, Afar and Somaligna shall be the working language of the federal government along with Amharic (Africa News, 4 March 2020). As a result, in order to realise such decision, Article 5 of the constitution, which deals with language, must be amended. Here, Interviewee 02 (8 September 2020) confirmed that: without amendment of the content of the constitution, solving the contending views and implementing new decisions regarding language is illusory.
The other inadequate constitutional provision that demands amendment is Article 54, which deals with election. The constitution under article 54 (1) asserts that elections will be undertaken within 5 years. However, the execution of this provision was impractical due to the global outbreak of COVID-19 pandemic. Based on this proclamation, the sixth round of general election was expected to be held on May 2020. However, due the outbreak of the pandemic, the election was postponed which in turn led to a tough constitutional debate between the supporters of the postponement of the election and those who oppose the postponement. While the former justified the suspension of the election, the latter argued that the postponement of the election is unconstitutional given that there is no constitutional provision that dealt with electoral suspension during crises. In response, the incumbent government tried to legitimise its suspension through constitutional interpretation. Despite this argument was not convincing in the eyes of many political forces.
One of the challenges that faced the government in relation to the sixth general election was its failure to justify the suspension of the election with a specific constitutional provision. Despite the fact that the outbreak of COVID-19 was a necessary condition to postpone the election, there was no clear and decisive legal ground to justify this (Interviewee 01, 8 September 2020).
Therefore, such practical evidences are important justifications for the demand of amending the contents of the 1995 FDRE constitution.
The study also indicated that the security and protection of intra-regional minorities is the other substantive issue that calls for the amendment of the FDRE constitution. The constitution is frequently criticised for it lacks a provision that can protect the interests of minority ethnic groups within a particular region. Due to this, protecting the rights of such minorities depends upon the benevolence of the regional administrations. At this point, the comparative study done by Vander Beken (2007) clearly showed that protection of minorities in Amhara regional state is better than what is happening in Oromia region.
As the FDRE constitution has no clause that dictates the representation and protection of citizens’ who lived outside of their ethnic-based regions, eviction, killing and destruction of properties of these citizens came to be an everyday phenomenon in the country. In recent times alone, it is witnessed that dozens of Amhara people were killed and evicted from the regions of Benshangul Gumuz, Southern Nations, Nationalities and Peoples and Oromia. The Oromia regional state admitted the killing of peaceful civilian members of the Amhara community in West Wollega, Guliso district though the attack was conducted in several parts of the region (Addis Standard, 3 November 2020). Since no appropriate measures has been taken, the exclusions and marginalisation of ethnic minorities who are living outside of their ethnic-based administrative unit is being continued (Ketemaw 2020). Accordingly, participants of the study explained that unless intra-regional minorities are allowed to be represented in the legislative and executive bodies of the respective regional state with appropriate constitutional ground, their rights and freedom would continuously be violated.
There is a deep-rooted and structural violation of the rights of citizens who lived outside their ethnic based regions. These citizens are not only vulnerable to unfair treatments but also systematically excluded from key political positions. The regional governments are failed (consciously or unconsciously) to protect the rights of individuals whose ethnicity differs from the so-called owner ethnic group (Interviewee 02, 10 September 2020).
The above interviewee realises that since the FDRE constitution has no provision that deals with protecting minorities in other regions, it needs revision to address such sensitive problems of the state.
Moreover, as Asefa (2018) argued, articles that deal with the preamble, the national flag, secession, state ownership of land, the issue of the Federal Capital (Addis Ababa), administrative boundaries and identities, the power and duties of House of Federation and the constitutional interpretation are some of the important provisions that demand constitutional amendment. Equally, the criteria of boundary demarcation among member states of the federation are the other sensible agenda where many political forces are asking for change. Largely, the claims in both procedural and substantive issues are strong justifications for the demands of the FDRE constitution.
The Prevailing Contestations on the Amendment of FDRE Constitution
Inflexible Amendment Rules of the FDRE Constitution
The investigation revealed that one of the existing contests on the amendment of the FDRE constitution is the rigidity of its amendment procedure. In a constitution, amendment clauses establish the rules for changing the rules and are essential for constitutionalism. Amendment clauses are important to describe the conditions under which all other constitutional norms may be legally displaced (Albert 2018). Amendment rules must be clear, understandable, certain and reliable to guide actions concerning amendments (Zelalem 2019). Amendment rules should also balance rigidity with flexibility for allowing a moderate amendment rate to the constitution (Lutz 1994). However, as opposed to such principles of amendment rules, the amendment procedures and requirements, which are stipulated under Article 104 and 105 of the FDRE constitution, are extremely rigid which cause constitutional amendment difficulty. Interviewee 12 (15 October 2020) maintained that:
The constitutional amendment rules which are stated under article 104 and 105 of the FDRE constitution are lengthy, confused and unrealistic. The rules that explain the procedures and requirements of constitutional amendment are so rigid and impracticable. It is believed that constitutional makers were designed these amendment rules not for amendment but to sustain the constitution without change.
Concerning the amendment clauses, Aberra (2017) demonstrated that the FDRE’s constitutional supremacy and the inflexible constitutional amendment procedures have been used as an instrument of normalising state violence during EPRDF regime. Similarly, Zelalem (2019) argued that the provisions of the amendment procedures under FDRE constitution are so ambiguous. The constitution lacks a clear answer and clarification on the issues regarding who can propose amendments, who should be allowed to initiate a constitutional amendment and how public participation should be undertaken during amendment. The rigidity of formal constitutional amendment procedures and/or the political context of a country have often kept constitutions static or subject to illegal constitutional alterations (Afesha 2017). Designing amendment formulas and processes, which allow a constitution to be changed for the interests of the public is a common problem especially in federal states and composite societies (Bockenforde 2017). Therefore, within such inflexible amendment rules, the FDRE constitution will inevitably continue without amendment.
The Unconstitutional Nature of the Government
According to Anderson (2008), constitutional making and amendment have special procedures which often call for consent from the legislatures or the public. If the ruling party and its government is not interested to amend the constitution in line with changing environments, this will continue as a challenge against the demands of constitutional amendment. Accordingly, since its beginning, the FDRE constitution has not been formally amended due to the refusal of ruling party. With reference to this, Zelalem (2019) said that the TPLF, which dominated the political system of the country for about three decades is still resisting any claim of constitutional change. Instead, the party often acts as if it is the guardian of the constitution. Accordingly, the study showed that the undemocratic nature of the TPLF-led EPRDF government is the other contest on the demands of constitutional amendment of the FDRE constitution.
Various scholars argue that the undemocratic nature of the regime begun to be explicit starting from the earliest stage in the making of the 1995 FDRE constitution. As discussed previously, the constitutional-making procedure of the FDRE constitution has been criticised given that all legal procedures, mainly public discussions, were not adequately held. At this point, Merera (2004) stated that only some public discussions were conducted when the draft constitution took place within polarisation and distrust political environment. Accordingly, it is evident that the incumbent’s motive to retain the existing constitution without amendment is its inherent nature. Participants argued that the FDRE constitution which is designed and formulated in line with the political aspiration of EPRDF/TPLF took advantage at the expense of others. As a result, the existing constitution disregards the interests of different ethnic groups since its formation. The TPLF and its government which advocates revolutionary democracy has used the constitution as a tool to implement its policies and to sustain itself in power. Hence, constitutional amendment has been continued as untouched agenda (Interviewee 05, 02 October 2020).
In relation to the government’s interest to maintain the constitution without amendment, Aberra (2017) illustrated that there is a common discourse of safeguarding the constitution and constitutional order among EPRDF politicians. Moreover, the dormancy of constitutional amendment under the EPRDF regime did happen since the legal authorities attained their goals through other legal apparatus without meddling into constitutional amendment procedures. Strong democratic states in the world are known for their flexible constitutional amendment rules (Bockenforde 2017). In contrast, constitutional amendment in Ethiopia becomes difficult due to the rigid constitutional provisions of the FDRE constitution together with the autocratic nature of the government that wishes to extend its political power.
Disagreement among Stakeholders
The study revealed that disagreement among stakeholders on the matter of constitutional amendment is the other challenging aspect of amending FDRE constitution. The discrepancy occurred not only among political parties but also within the members of the ruling party. Evidences indicated that, recently some of the members of the ruling party are showing interests to deal with constitutional amendment. To mention some instances, the Amhara PP officially request for the amendments of the constitution. Likewise, Abiy, as soon as he became a prime minister, was heard to speak about the need for constitutional amendment. However, his stand is not consistent. In one discussion held with opposition political parties, he said that ‘we will not amend the constitution for the sole interest of a particular people’ in a response to the tough claims proposed by representatives from NaMA. Interviewee 12 (21 September 2020) argues: even though constitutional amendment is a timely agenda, disagreements among political forces make it difficult. The position of the newly ruling party (PP) is not clear.
Largely, the position of political forces concerning the amendment of the FDRE constitution can be seen with respect to two conventional grouping of the political parties. Accordingly, pan-nationalist or multinational political parties argue for the amendment of the FDRE constitution in reference to both the procedural and substantive claims. Moreover, the Amhara-based ethnic political forces, though they are ethno-nationalists, can be grouped under this camp to the extent that they demand constitutional amendment. Conversely, the second group incorporate political forces that strictly oppose constitutional amendment as the case in TPLF. The position of other ethno-nationalist political forces like OLF and OFC is still flawed despite they have claims that need the amendment of the constitution to be addressed. For instance, interviewee 09 (10 September 2020) explained: OLF and OFC are among political forces which struggle to make Oromifa the working language of the federal government which needs constitutional amendment. Nevertheless, these political forces are unhappy when other political parties claim the need for constitutional amendment.
Consequently, the divergent views and lack of political integrity among stakeholders, mainly contending political parties, make constitutional amendment of the FDRE constitution difficult.
The Effects of Un-amended FDRE Constitution
It is thought that the process of constitutional amendment provides a peaceful method for changing the constitution without violent alternatives and hence serves as the safety-valve to a state (Preuss 2011). In view of this, the study indicated that one of the effects of the un-amended FDRE constitution is the intensification of insecurity and uncertainty. Since the existing constitution is inadequate to address fundamental questions of the people who lived outside their ethnic-based regions, instability, conflict and violation of human rights continue in different parts of the country. Aberra (2017) described that once a regime is constituted, a new identity is formed, others will be outlawed and thus people with distinct questions and interests will be prone to state violence as the regime is not responsive to their needs. Hence, violent struggles have occurred due to the stagnation of the constitution.
The FDRE constitution has no clause that dictates political representation of citizens who lived in other regions. Therefore, without political representation, citizens will be vulnerable to various maladministration and violation of human rights, which in turn lead to conflict and instability. At this juncture, Zelalem (2019) argued that a constitution and any political actions that make constitutional amendment impossible is the worst tyranny of the time which invites the people and political forces to recourse to upheavals and revolutions. As a result, such revolutionary actions inevitably affect the peaceful existence of the country’s political and legal settings.
The study also revealed that the other aspect of the un-amended nature of the FDRE constitution is worsening the illegitimacy of the constitution and the regime as a whole. This for the simple reason that people will no longer have trust and respect to a political system which is failed to answer their questions. One of the participants explained that:
The irresponsiveness of the government together with rigid amendment rules of the FDRE constitution results the loss of constitutional legitimacy and decline of regime trust particularly among political forces that demand change on the contents of the existing constitution. As we know, the constitution is inadequate to protect people’s basic right and hence its legitimacy and validity is increasingly undermined (Interviewee 10, 11 October 2020).
In any political system, the principles of rule of law can prevail if the law is a good law that people can obey it. A high degree of rigidity in constitutional arrangements is not only a reflection of distrust towards framers of new constitutions or those who might wish to amend the existing documents, but it is an outright interference with the sovereignty of future generations (Seidman 2012). Accordingly, given that many political actors viewed the FDRE constitution as corrupted law, the constitution significantly loses its validity and effectiveness. In relation to this, Bockenforde (2017) also illustrated that a high rigidity of constitutional amendment process will ultimately result in a constitution that loses both its functionality and legitimacy.
According to Jackso and Tushet (2006), the constitutional amendment procedure that involves participation, consent and moral justification of the people enables to legitimise political actions. On the other hand, the un-amendable nature of FDRE constitution continues to be a cause for its failure to maintain public trust. Moreover, the inflexibility of the FDRE constitution is further criticised, for it weakens the deepening of democratic system in the country. Regarding this, Bockenforde (2017) said that a rigid constitution would prevent necessary reforms in a certain political system. In view of that, participants of the study explained that political forces will find violent and undemocratic ways of amendment as far as the procedures of constitutional amendment under the FDRE constitution is complex and impossible through democratic means.
Conclusion
Constitutional amendment is undertaken to fit the existing constitutions with the emerging socio-political dynamics of a particular state. The purpose of this article was to assess the demands of the prevailing contests on the amendment of the FDRE constitution. The article also examined the effects of un-amendable constitution on the political system of the state. Consequently, the study revealed that one of the demands for the amendment of the existing Ethiopian constitution is resulted from the exclusionary tendencies in its making process. In this regard, the constitutional making process of the FDRE constitution is criticised since the process was not representative, particularly for multinational and Amhara-based political parties. Substantively, the inadequacy of the constitution to address new socio-political changes such as the emergence of new regional states and working language of the federal government is also found to have strong implication on the demands to amend the FDRE constitution. The failure of the constitution on how to handle electoral process during natural and man-made crisis as well as its limitation to guarantee the rights of intra-regional minorities are the other substantive claims that justify the demand for the amendment of the FDRE constitution. Moreover, the study indicated that an inclusive dialogue and constitutional amendment is important to address the controversial provisions that deal with national flag, the power of the House of Federation, land ownership, criteria of internal demarcation and the establishment of regions, and constitutional interpretation and the like.
In relation to the contests of constitutional amendment of the FDRE constitution, the inflexibility of amendment rules is central. The constitutional provisions that deal with amendment are impractical. Here, the disagreements between stakeholders, mainly the lack of integrity among the elites and the competition between the multinational and ethno-national political forces negatively affect the amendment of the constitution. The study revealed that the un-amendable nature of the FDRE constitution results in constitutional illegitimacy, which in turn affects its future functionality, as significant number of people have no trust on it. Furthermore, the rigidity of the FDRE constitution for amendment will eventually cause political forces to choose other revolutionary and undemocratic means of constitutional change, which in turn undermine the realisation of desired political reforms in the country. As a result, considering constitutional amendment as a healthy political process and taking necessary measures for its implementation is a timely responsibility of all stakeholders.
Footnotes
Declaration of Conflicting Interests
The authors declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The authors received no financial support for the research, authorship and/or publication of this article.